Apple did already attempt to license the patent under FRAND (fair, reasonable and non-discriminatory) terms but Motorola's legal team convinced the court that if Apple is guilty of infringement, the total damages would exceed the value of the FRAND agreement.

"While competition law requires the patent holder to extend a license on FRAND terms going forward, past infringement is a different matter," Mueller explained. "If, in the alternative, damages for past infringement were limited to a FRAND royalty rate, Motorola and Judge Voß argue, an infringer might ultimately get to use the patent on more favourable terms than someone procuring a license at the outset."

So, the court sided with Motorola that because Apple had refused to pay reasonable terms over the last four years, an above-FRAND rate was applicable as recompense for damages.